Clare Daly (Dublin Fingal, Independent)
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114. To ask the Minister for Justice and Equality if judges of the Circuit Court are empowered to refuse to hear the voice of the child in family law proceedings, in view of the fact that regulations have yet to be passed governing the appointment and qualifications of experts under section 32 of the Child and Family Relationships Act 2015; and if she will make a statement on the matter. [17570/17]

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Deputy will be aware that Article 42A.4 of the Constitution requires that provision be made by law that in the resolution of all proceedings concerning the guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration. It also requires that provision be made by law for securing, as far as practicable, that in all such proceedings in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

The Children and Family Relationships Act 2015 contains new provisions regarding the best interests of children in family law proceedings which have been in operation since 18 January 2016.

Section 3 of the Guardianship of Infants Act 1964, as amended by section 45 of the 2015 Act, provides that the best interests of the child shall be the paramount consideration for the court in proceedings where the guardianship, custody or upbringing of, or access to, a child is in question.

The best interests of a child are to be determined in accordance with the new Part V of the 1964 Act, inserted by section 63 of the 2015 Act. Part V, entitled “Best Interests of the Child”, contains two important sections.

Section 31 sets out an extensive list of factors and circumstances to be taken into account by a court when determining the best interests of a child. These include the views of the child that are ascertainable (whether in accordance with section 32 or otherwise). The court can ascertain the views of the child in person or through an expert. Section 31(6) provides that in obtaining the ascertainable views of a child, the court shall facilitate the free expression by the child of those views and endeavour to ensure that any views expressed by the child are not expressed as a result of undue influence, and may make an order under section 32.

Section 32 facilitates the hearing of the voice of the child by enabling the court to appoint an expert to determine and convey the child’s views to the court, so that the child’s voice can be heard in the proceedings.

These provisions allow the courts to take account of the evolving capacity of children and also give the courts the flexibility to ensure that all children’s views can be heard.

My Department, in consultation with the Office of the Parliamentary Counsel and the Department of Children and Youth Affairs, is currently finalising the drafting of regulations under section 32(10) of the 1964 Act. These regulations will specify the necessary qualifications and experience of child views experts appointed in private family law proceedings and the fees and expenses that may be charged by such experts. The fact that regulations have not yet been made under section 32(10) does not restrict a court's power to appoint a child views expert under section 32 or otherwise to hear the voice of the child in family law proceedings.